EMPLOYMENT
LEGISLATION
UNJUSTIFIABLE
DISCIPLINE BY A TRADE UNION (PL865 Rev 2)
Contents
Union members have the right not to be
unjustifiably disciplined by their union. This right applies in addition to any
other legal right a member disciplined by his union might have. It gives members
freedom to make up their own minds whether or not to support industrial action,
and provides protection for members who seek to ensure that their union obeys
the law.
This document describes what is meant by
discipline, when discipline is unjustifiable, and how a complaint of
unjustifiable discipline can be made to an employment tribunal.
This document provides general guidance only.
Authoritative interpretations of the law can only be given by the courts.
The contents of this document apply equally to
men and women. For simplicity, however, the masculine pronoun is used
throughout.
Section
1: What is meant by discipline?
An individual has been
disciplined by a union where one or more of the following penalties has been
imposed on him:
- expulsion from the
union or from any branch or section of it; or
- payment of a sum of
money (for example, as a fine) to the union, any branch or section of it, or
to any other person; or
- treatment of his union
subscriptions, or any other payment he has made to the union or any branch
or section of it, as unpaid or paid for a different purpose (e.g. to pay a
fine); or
- deprivation (even if
only temporarily or in limited circumstances) of any benefits, services or
facilities which would otherwise be available to him as a member.
An individual will also
have been disciplined if:
- another trade union,
branch or section, is encouraged or advised not to accept him as a member; or
- he is subjected or any
other detriment or disadvantage not listed above.
An individual is treated
as having been disciplined by a union not only where the decision to impose the
penalty was made in accordance with union rules but also where it was made:
- by an official of the
union (for example, a member of the executive, a trustee, or an elected shop
steward); or
- by a group which
includes an official of the union.
Section
2: When is discipline unjustifiable?
Not all union discipline
is unjustifiable. What matters is the conduct for which the individual is
disciplined.
The discipline will be
unjustifiable only if the reason, or one of the reasons, for which it is imposed
is conduct described in sections A to C below, or something that the union
believes to be such conduct.
A -
Strike or other industrial action
Discipline will be
unjustifiable if it is for:
- failing to take part in
or support any strike or other industrial action;
- showing opposition to,
or lack of support for, any strike or other industrial action;
- failing to break, for
any purpose connected with a strike or other industrial action, any
obligation imposed by a contract of employment or by any other agreement
between the individual and the person for whom he works;
- encouraging or
assisting another person to honour his contract of employment or other
agreement with his employer.
The most common examples
of conduct for which individuals are protected against unjustifiable discipline
are:
- going to work despite a
call to take strike or other industrial action (the individual is protected
whether or not there has been a ballot and whatever its outcome);
- crossing a picket line,
including one mounted by the individual's own union at his own place of
work;
- speaking out against a
call to take strike or other industrial action;
- refusing to pay a levy
to fund a strike or other industrial action, including one described as
compulsory, or imposed under union rules.
B -
Assertions
Discipline will be
unjustifiable if it is for:
- making an assertion
that the union, any of its officials, any trustee, or anyone else
representing the union has broken or is proposing to break any requirement
imposed, or thought to be imposed, by the union's rules, by any other
agreement or by the law;
- encouraging or
assisting another person to make, defend or vindicate an assertion of the
kind just described;
- consulting or seeking
advice or assistance from the Certification Officer;
- consulting or seeking
advice or assistance from any other person in connection with a matter which
forms, or might form, the subject matter of an assertion of the type
described in this section.
The protection for making
an assertion about a breach of union rules or of the law applies whether or not
it has been made in the context of legal proceedings. Individuals will be
protected against unjustifiable discipline, therefore, if an assertion is made,
for example, during a union meeting or in a letter. Discipline will not
be unjustifiable, however, if the assertion was false and the individual making
it, or helping another to do so, believed the assertion to be false or otherwise
acted in bad faith.
C - Further
conduct for which discipline is unjustifiable
The remaining grounds on
which union discipline is unjustifiable are:
- refusing to comply with
any penalty which has been imposed following disciplinary action which was
itself unjustifiable;
- refusing to allow union
subscriptions to be paid through the check-off;
- proposing to resign
from the union, or joining or refusing to join or resigning from a different
union;
- working or proposing to
work with people who are not members of the union or who are or are not
members of a different union;
- working or proposing to
work for an employer who employs (or has employed) people who are not
members of the union or who are or are not members of a different union;
- requiring the union to
do anything which under employment legislation, it is obliged to do on the
request of a member;
- proposing to do any of
the things listed in sections A, B or C, or doing anything preparatory or
incidental to doing any of those things.
Individuals will,
therefore, be protected against further unjustifiable discipline if, for
example, they refuse to pay a fine imposed on them for working during a strike.
Also, any discipline for proposing, for example, to go to work during a dispute
or to give evidence in good faith to help someone else defend an assertion will
be unjustifiable.
Conduct which is partly
protected and partly unprotected
Disciplinary action may
not, however, be unjustifiable if it is for unprotected conduct which formed a
part of conduct described above (and which therefore counts as protected). If
the union can distinguish between the two parts and show that individuals would
be disciplined for the unprotected part whether or not it took place in
connection with the protected conduct, then discipline for the unprotected
conduct will not be unjustifiable.
For example, a member who
made an assertion in good faith that a union had broken its own rules would be
protected against unjustifiable discipline, because that is conduct listed
above. However, if he made his assertion in a way not permitted by those rules -
for example by acting in a disruptive way at a union meeting - and the union
could show that individuals who acted in that way were always disciplined, then
disciplinary action for disruptiveness would not be unjustifiable.
Disciplinary action for
making the assertion itself, however, would be unjustifiable, even if members
had previously always been disciplined for making assertions.
Section
3: Making a complaint
How can a complaint be
made?
An individual who
believes he has been unjustifiably disciplined by a trade union may make a
complaint to an employment
tribunal. This should be done within three months of the union's disciplinary
decision. Tribunals have discretion to extend this period only where:
- they consider it was
not reasonably practicable for the complaint to be presented within three
months, or
- any delay was due to a
reasonable attempt by the individual to appeal against the decision or to
have it reconsidered by the union:
An application form IT1,
or in Scotland IT1 (Scot), should be used. These, and an explanatory leaflet, How
to apply to an employment tribunal, can be obtained from Jobcentre Plus
offices. The applicant should send the completed form to the appropriate
Tribunal Office (the application form tells you which this is).
What happens next?
Conciliation
A copy of the application
form is sent to the Advisory, Conciliation and
Arbitration Service (Acas). An Acas conciliator will attempt to assist the
parties to reach a voluntary settlement without the need for a tribunal hearing
if the parties concerned ask him to do so or if he thinks that there is a
reasonable chance of success. Conciliators can also assist, at the request of
any of the parties concerned, before a formal complaint has been made to a
tribunal.
Tribunal hearing
A union may have
procedures for settling complaints made by members. Where such procedures exist,
individuals may wish to make use of them, and an employment
tribunal can extend the time limit for making an application where such
procedures have been used.
Voluntary procedures
If a voluntary
settlement is not reached, or the application is not withdrawn, the member's
complaint of unjustifiable discipline will be heard by the employment
tribunal. The tribunal will then decide whether the disciplinary action has
infringed the right of the member not to be unjustifiably disciplined.
If the tribunal finds
the complaint of unjustifiable discipline well-founded it will make a
declaration to that effect.
This may be sufficient
remedy in itself, particularly if the union withdraws the disciplinary action.
The individual has the right, however, to make an application for compensation
to be paid by the union and/or for an order that the union pay to him the amount
of any fine which he has paid but not had refunded.
An application for
compensation or for an order should be made:
- to the Employment
Appeal Tribunal (EAT) if the union has not lifted the penalty imposed,
or if it has not taken all necessary steps to reverse anything done in
giving effect to the penalty;
- to an Employment
tribunal in any other case.
The application will only
be considered if it is made more than four weeks but less than six months after
the date of the tribunal's declaration that disciplinary action was
unjustifiable.
The EAT and employment
tribunals have the power to transfer applications to each other if they have
been made to the wrong place. The application will then be considered as if it
had originally been made to the correct tribunal.
How much compensation
can be paid?
The tribunal or the EAT
will award whatever compensation it considers just and equitable in all the
circumstances. Factors taken into account will include, where appropriate, the
individual's duty to reduce any financial loss, and whether or not his conduct
contributed to the disciplinary action. The current maximum amount of
compensation which may be awarded is £56,900. Where the application has been
made to the EAT (because the union has not reversed the effect of any penalty),
there will normally be a minimum award of £5,300 compensation. These
figures are revised annually in line with the retail prices index.
Appeals
An appeal can be made to
the EAT on any question of law arising from an employment tribunal's decision or
the proceedings before it.
What if the discipline
in question takes the form of expulsion from the union?
In addition to the right
not to be unjustifiably disciplined, individuals now have the right not to be
excluded or expelled from a union for anything other than a "permitted
reason". The permitted reasons are defined in law, and include geographical
or occupational limits on recruitment and conduct - but not the conduct
described in this document for which discipline would be unjustifiable. An
individual who is expelled from the union for any other reason may bring a
complaint to an employment tribunal, and may be awarded compensation.
An individual who is
expelled from his union for conduct described in this document may therefore
have two rights of complaint: one under the law relating to unjustifiable
discipline, and one under the law on exclusion or expulsion from a trade union.
In this situation, the individual may make two separate complaints to the
employment tribunal, but if one of those complaints is declared to be
well-founded, he will not be able to proceed with the second.
Further information about
the right not to be excluded or expelled from a trade union may be found in the
document Union
membership: rights of members and non-members (PL 871).
Advisory,
Conciliation and Arbitration Service
Other
employment legislation publications
|
